Petreski v D Akmadziz & I Admadzic
[2023] NSWPICMP 276
•16 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Petreski v D Akmadziz & I Admadzic [2023] NSWPICMP 276 |
| APPELLANT: | Lazar Petreski |
| RESPONDENT: | D Akmadzic & I Admadzic |
| Appeal Panel | |
| MEMBER: | Brett Batchelor |
| MEDICAL ASSESSOR: | Brian Williams |
| MEDICAL ASSESSOR: | Robert Payten |
| DATE OF DECISION: | 16 June 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by worker on the grounds that the Medical Assessor (MA) failed to provide reasons for non-occupational noise quantum, failed to address the proportion to which his industrial deafness related to non-occupational deafness, failed to assess the degree of permanent impairment in accordance with section 323, failed to take into account the noise levels in respect of the lower frequencies, and failed to distinguish between the effects on industrial deafness and non-occupational deafness; the Appeal Panel found error in the inclusion by the MA of hearing loss sustained during a long period of self-employment into the deduction made pursuant to section 323, and in the manner in which the degree of noise exposure in self-employment should be dealt with; the appellant worker was re-examined by a member of the Panel; the Panel also found error in the frequencies over which the Medical Assessor assessed occupational hearing loss; Held – Medical Assessment Certificate revoked and new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 31 October 2022 Lazar Petreski (the appellant/Mr Petreski) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kenneth Howison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 August 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel (the Panel) has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant came to Australia from Macedonia in 1972 where he served an apprenticeship as a painter for five years, and as a wall paperer for six years, during which time he provided no history of noise exposure. Mr Petreski worked as a painter on high rise buildings in Brisbane, Queensland from 1972 until 1975, exposed to the noise experienced by a construction site worker of grinding, sanding, kangas, compressor sprayers and other trades. That was noisy employment. Mr Petreski then worked for the Sydney Water Board for six to eight weeks exposed to the noise of tunnelling, drilling rock, excavators and winches. That was noisy employment. Thereafter spent the rest of his working life as a painter, a significant period of which was in self-employment between 1975 and September 2009. He was employed as a painter by D Akmadzic & I Admadzic (the respondent) between October and November 2009. His period of self-employment and employment with the respondent was noisy employment.
The appellant was deemed to have suffered injury in the form of industrial deafness arising out of or in the course of his employment with the respondent on 4 November 2009.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Panel determined that the worker should undergo a further medical examination because it is of the view that there is demonstrable error in the MAC in respect of the deduction made from the degree of whole person impairment (WPI) assessed by the Medical Assessor pursuant to s 323 of the 1998 Act for “his long period of self-employment”, and in the manner in which the degree of noise exposure in self-employment should be dealt with.
EVIDENCE
Documentary evidence
The Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Brian Williams of the Panel conducted an examination of the appellant on 26 April 2023 and reported to the Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Panel.
Appellant
In summary, the appellant submits that there is no dispute that the respondent was his last noisy employer, and that the assessment of Dr Giovanni Lucchese who, independently medically examined him on 22 June 2021 and produced a report dated 19 July 2021,[1] is correct in his assessment of occupational hearing loss suffered of 17% WPI. The appellant notes that Dr Lucchese made no deduction for pre-existing or non-occupational hearing loss, but does provide a correction for presbycusis. The appellant submits that the report of Dr Lucchese should be accepted.
[1] Appeal Papers (AP) p 58.
The appellant submits that the MAC contains a demonstrable error as the Medical Assessor:
(a) failed to provide and record reasons for non-occupational noise quantum;
(b) failed to address the proportion to which his industrial deafness related to non-occupational deafness;
(c) based his assessment on incorrect criteria as he failed to assess the degree of permanent impairment in accordance with s 323 of the 1998 Act;
(d) failed to properly take into account the noise levels in respect of the lower frequencies, and
(e) failed to distinguish between the effects of industrial deafness and non-occupational deafness.
The appellant submits that the Medical Assessor has fallen into error in respect of non-occupational hearing loss and the deduction made pursuant to s 323 of the 1998 Act by referring to the appellant’s long period of noise exposure during self-employment, and noise exposure in Macedonia and Queensland.
The appellant submits that the assessment of non-occupational hearing loss assessed by the Medical Assessor is excessive, and that adequate reasons have not been provided for [sic, not?] attributing the loss below 2000Hz to noise exposure caused at the respondent as the last noisy employer.
The appellant submits that the appeal can be dealt with ‘on the papers’, but does not oppose being re-examined should the Panel determine that a re-examination is required.
Respondent
In reply, the respondent notes the Medical Assessor’s consideration of hearing loss during self-employment, and that it can be considered a “pre-existing injury” in the same way as an injury from outside New South Wales, and thus capable of being deducted under s 323 of the 1998 Act. The Medical Assessor referred to the appellant’s “long period of noise exposure during self-employment” and “noise exposure in Queensland and Macedonia” with reference to the 10% deduction indicated by him pursuant to s 323.
The respondent submits that the Medical Assessor has thoroughly and consistently provided reasoning with respect to deductions for non-occupational hearing loss, exclusion for hearing loss at frequencies below 2000Hz, and deductions for pre-existing hearing loss. These deductions were made by the Medical Assessor, according to the respondent, in accordance with the 1988 National Acoustic Laboratory (NAL) Tables, Part 9 of the Guidelines, Chapter 11 of AMA 5, and s 323 of the 1998 Act.
The respondent submits that the appeal can be dealt with in the absence of any further evidence and that MAC should not be revoked.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. (See Siddik v Workcover Authority of NSW[2] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[3]).
[2] [2008] NSWCA 116.
[3] [2013] NSWCA 1792.
In Campbelltown City Council v Vegan[4] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[4] [2006] NSWCA 284.
Industrial deafness
Section 17 of the Workers Compensation Act 1987 (the 1987 Act) provides:
“17 Loss of hearing—special provisions
(cf former s 7 (4B), (4BB))
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—
(a) for the purposes of this Act, the injury shall be deemed to have happened—
(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii) where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b) the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(c) compensation is payable by—
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii) where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
…”
The High Court explained in Commissioner for Railways v Bain[5] that the predecessor of s 17 deemed noise-induced hearing loss to have happened in one blow and said it was an error to apportion the loss between the various periods of work.
[5] [1965] HCA 5; (1965) 112 CLR 246.
In Blayney Shire Council v Lobley[6] the Court of Appeal explained that the section was not concerned with true causation but deemed the loss to have happened at one time. It required the last noisy employer to pay compensation whether or not that employment actually caused the loss.
[6] (1995) 12 NSWCCR 52.
In this case the respondent is the last noisy employer, and by the operation of s 17 all of the appellant’s hearing loss is deemed to have been suffered on 4 November 2009.
Section 68B of the 1987 Act provides:
“When determining the compensation payable by an employer in a case in which section 17 applies (loss or further loss of hearing), section 323 of the 1998 Act applies to that compensation subject to the following—
(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,
(b) for the purposes of paragraph (a), previous relevant employment is employment to the nature of which the disease was due by a previous employer who is liable under section 17 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).”
Self-employment is not “previous relevant employment”.
Self-employment
At [4] on p 2 of the MAC the Medical Assessor said:
“Mr Petreski arrived in Australia in 1972 from Macedonia where he served an apprenticeship for five years as a Painter exposed to the noise of grinding and construction site noise similar to as in Australia. After coming to Australia in 1972 he worked until 1975 as a Painter in Brisbane exposed to similar noise as during the rest of his working career as a Painter. I therefore consider a deduction of 10% is indicated for noise exposure outside of New South Wales, namely in Queensland and Macedonia and for his long period of self-employment.
Self-employment is not covered under the definition of ‘employment’ in the NSW workers compensation legislation, since section 4 of the 1998 Act requires there to be both a worker and a separate employer for ‘employment’ to exist.
Since self-employment is not ‘employment’ under the legislation, hearing loss during self-employment can be considered to be a ‘pre-existing injury’ in the same way as an injury from outside of NSW, and thus, is capable of being deducted under section 323 of the 1998 Act.”[7] (emphasis in original)
[7] AP p 20.
The Panel finds error in this reasoning of the Medical Assessor.
“Employment” is not defined in the NSW workers compensation legislation. Section 4 of the 1987 Act contains the following relevant definition of “injury”:
“Definition of ‘injury’ (cf former s 6(1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
Section 4 of the 1998 Act contains the following definition of “employer”:
“employer includes—
(a) the legal personal representative of a deceased employer, or
(b) a government employer, or
(c) a former employer.
Without limiting the meaning of the expression, an employer can be an individual, a corporation, a firm, an unincorporated body of persons, a government agency or the Crown.”
Hearing loss during self-employment cannot be considered to be a “pre-existing injury” in the same way as any noise-induced hearing loss suffered in employment outside of NSW. An injury must be sustained in the course of employment. That does not include self-employment.
Section 323 of the 1987 Act may be relevant to the appellant’s period of employment in Macedonia or Queensland, where he was working for an employer, if the relevant factual evidence is available. This is considered hereunder. However, it is an error to make a deduction under s 323 for the period of self-employment in which the appellant was engaged between 1975 and September 2009.
Non-related hearing loss
The appellant submits that the Medical Assessor failed to properly take into account the noise levels in respect of the lower frequencies, and has not provided an adequate reason for not attributing hearing loss below 2000Hz to noise exposure caused by employment with the respondent, the last noisy employer. The appellant states Dr Lucchese made no deduction other than presbycusis and found 17% WPI which is the total loss including the right asymmetric loss at 1000-4000Hz. However Dr Lucchese’s report indicates he intended to assess the left ear at 1000-4000Hz and an equal amount in the right ear. That is, he deducted the hearing losses at 500Hz and intended to deduct the right hearing losses in excess of the left at 1000-4000Hz.
The Medical Assessor says at [10.b.] of the MAC:
“After consideration of the cumulative noise emission levels to which Mr Petreski has been exposed, I would consider that the frequencies 2000, 3000 and 4000 Hz in each ear have been damaged by unacceptable noise levels and I have used these frequencies in the calculations for noise induced hearing loss.”[8]
Yet the Medical Assessor also states
“Noise induced hearing loss is typically symmetrical and progressive from the low to the high frequencies and this is because noise damages the inner ear by affecting the higher frequencies first…….that is to say 1500 Hz should be affected less than 2000 Hz and 1000 Hz less than 1500 Hz…”
The Panel notes that in the Medical Assessor’s table 4 the left hearing level at 1500Hz is less than 2000Hz and 1000Hz is less than 1500Hz.
[8] AP p 22
The Medical Assessor was in error at [11.c.(ii)] of the MAC in applying the provisions of s 323 (2) to include in the deductible proportion an allowance for noise exposure during self-employment.
After considering his medical history including his occupational noise exposure history and physical examination including audiometry in Dr Williams’ report which the Panel accepts, the Panel finds his left hearing losses at 1000-4000Hz and an equal amount in his right ear are due to his occupational noise exposure and the remainder of his hearing losses are unrelated to his occupational noise exposure. The Panel finds his right asymmetric hearing losses in excess of the left are unrelated to his occupation because occupational noise induced hearing loss of gradual process is symmetric rather than asymmetric. After considering the nature and duration of his occupational noise exposure and the nature and extent of all his hearing losses including the profile of the audiogram at 500Hz and 1000Hz the Panel finds his left hearing losses at 500Hz are unrelated to his occupation.
Section 323 deduction
Noise-induced hearing loss suffered in employment overseas or interstate, that is out of the jurisdiction of NSW, may give rise to a s 323 deduction if the relevant factual evidence is available.
In this case the appellant says at [5] in his statement dated 7 February 2022:
“I arrived in Australia in 1972. Prior to leaving former Yugoslavia I worked as a painter for about 5 years. I did national service for nine months in the army. I played in army band as a trumpeter. I also did accordian but it was not very noisy. I was not exposed to gunfire except for a few training sessions. I was not involved in any war or conflict.”[9]
[9] AP p 35.
At [6]-[7] in that statement the appellant gives evidence of the noise to which he was exposed in employment in Queensland between 1972 and 1975, with Sydney Water (NSW) in 1975, and with the respondent in October and November 2009 until he ceased work on 4 November 2009. All of this is described by Mr Petreski as noisy employment. The appellant’s evidence set out in [43] above is not consistent with what is recorded by the Medical Assessor in [4] of the MAC, noted at [30] above, that “Mr Petreski arrived in Australia in 1972 from Macedonia where he served an apprenticeship for five years as a Painter exposed to the noise of grinding and construction site noise similar to as in Australia.” The applicant’s statement is consistent with the “PAST HISTORY” and “OCCUPATIONAL HISTORY” (emphasis in original) recorded by Dr Williams in his report set out hereunder prepared following his re-examination of the appellant on 26 April 2023.
The Panel notes the appellant was not a “worker” employed within NSW for the period between approximately 1972 and 1975 when he was employed in Queensland. The occupational noise exposure during this period was hazardous to hearing and in all likelihood caused occupational noise induced hearing loss that contributed to his current impairment. This period is prior to the deemed date of injury of 4 November 2009.
Hence, it is the case that if a worker has a prior injury of occupational hearing loss that occurred while the appellant was not a “worker” employed within NSW then potentially s 323 may be engaged such that if a proportion of the worker’s permanent impairment is due to that prior injury then there must, under s323(1), be a deduction for it.
The Panel consider that the evidence in this matter clearly establishes that the appellant had, as a consequence of his employment in Queensland between approximately 1972 and 1975, irreversible and permanent damage to his cochleas. The cochlea is part of the inner ear and is similar in structure to a seashell. It is approximately 33 millimetres in length. It has hair cells along its length and damage to those hair cells will cause hearing loss. The hair cells 10 millimetres along the length of the cochlea from its basal opening are the first to be permanently injured by exposure to hazardous occupational noise of a nature and duration to do so. The first permanent partial hearing loss occurs at frequencies affected in this region of the cochlea namely at 3000, 4000 and/or 6000Hz even if asymptomatic. With continuing exposure to that hazardous occupational noise the injury here gradually worsens causing increasing permanent partial hearing loss at these frequencies even if asymptomatic.
The history that Dr Williams, a member of the Panel, obtained and set out in his report and also Dr Lucchese in his report dated 19 July 2021, and Dr Howison in the MAC, revealed that the claimant’s employment in Queensland from approximately 1972 to 1975 exposed him to noise from the building industry. The Panel notes Dr Williams reports the noise of grinding, sanding, kangas, compressor sprayers and other trades; and that Dr Williams obtained a history that the claimant did not wear hearing protection during this period. The Panel notes that the claimant described having to raise his voice and go outside in order to communicate at a distance of one metre, which is indicative of ambient noise levels in excess of 90dB. The Panel also note that more than two hours exposure to such noise would be hazardous to a person’s hearing and that the claimant worked 40 hours per week in that noise.
The Panel considers that that evidence establishes that in all likelihood the exposure of the claimant to occupational noise between approximately 1972 and 1975 would have caused permanent and irreversible damage to his cochleas such that he would have had permanent partial hearing loss at the frequencies of 3,000 and 4,000Hz. That is the case, even though the claimant may not have been aware of it in 1975. In other words, the Panel considers that the claimant had irreversible and permanently damaged cochleas with permanent partial hearing losses at 3000 and 4000Hz due to hazardous noise exposure between approximately 1972 and 1975 and that this permanent damage to his cochleas and permanent partial hearing loss contributes to his current hearing losses at 3000 and 4000Hz.
For the reasons outlined in [41]-[42] above, the Panel considers that there is insufficient evidence to find the appellant’s employment in Macedonia contributes to his current hearing losses at 3000 and 4000Hz. The Panel accepts what Mr Petreski says in his statement dated 7 February 2022 and the history recorded by Dr Williams in respect of the appellant’s noise exposure in Macedonia in preference to the history recorded by the Medical Assessor in the MAC.
Accordingly, there must be a deduction under s 323(1) for occupational noise induced hearing loss due to his damaged cochleas between approximately 1972 and 1975 in Queensland. It is simply too difficult to determine the exact extent of that damage to his ears that contributes to his present hearing loss and hence, in accordance with s 323(2) of the 1998 Act, the Panel assumes that the proportion of the appellant’s permanent impairment resulting from his hearing loss due to his damaged cochleas between approximately 1972 and 1975 is one-tenth. That assumption is not at odds with the evidence in the proceedings. Consequently, after the one-tenth deduction under s 323 the Panel assess the appellant’s adjusted WPI as 11.7% which rounds to 12 % WPI due to the injury with date of injury of 4 November 2009. The Panel makes no deduction for occupational noise induced hearing loss due to self-employment.
The full report of Dr Williams following his examination of the appellant on 26 April 2023, including his audiogram recorded in tabular form, is as follows:
“Matter Number:
M1-W691/22
Applicant worker:
Lazar PETRESKI
Examining Medical Specialist:
Dr Brian J Williams
Specialty:
Otorhinolaryngology - ENT
1. DETAILS OF MATTERS REFERRED FOR ASSESSMENT
The following matters have been referred for assessment (s 319 of the 1998 Act):
·Date of injury: 4.11.2009 (deemed)
·Body parts/systems referred: Hearing Loss
·Method of Assessment: Whole Person Impairment
2. EVIDENCE
Documentary Evidence
The following documents were referred by the Commission for this assessment:
·As listed in the referral from the Registrar
Additional Information
The following information was obtained in accordance with Section 324(1) of the 1998 Act:
·Nil.
·List any imaging studies provided by the worker which were not listed in the documentation provided: Nil.
3. WORKER’S DETAILS INCLUDING
· Date of examination: 26.4.23
· Date of birth and age at examination: XXX; 74 years of age
· Hand dominance: Right Handed
· Details of who attended the examination: Mr Petreski was unaccompanied.
· Date of injury: 4.11.2009 (deemed)
· Employer : D Akmadziz & I Akmadzic t/as Artive Home Service
· Occupation: Construction Worker/Painter
4. HISTORY RELATING TO THE INJURY
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
The history I obtained from Mr Petreski is as follows.
Hearing Loss
He gave a history of bilateral gradually progressive hearing loss for 15 years. He said the right has been worse than the left for 15 years. He said he has difficulty hearing conversation, needs to increase the volume of the television above others and has difficulty hearing in background noise. He said he does not have hearing aids.
Tinnitus
He gave a history of a right buzzing on and off occurring once a month. He said it lasts for 3 days. He said he was treated by his GP with oil drops for 1 week. He said he had a head scan by his Doctor in Five Dock last year. He said it does not interfere with his daily activities during the day. He said it interferes with sleep as it can wake him up sometimes. He said he has been treated with ear drops. He said he has discussed his tinnitus with his GP.
·present treatment: Please see above
·present symptoms: Please see above
·details of any previous or subsequent accidents, injuries or condition:
PAST HISTORY
He gave no history of hereditary deafness. He gave no history of direct ear or head trauma or blast injury. He gave no history of otitis media or ototoxic exposure. He said he served in the Army and in his statement he said he had ‘a few training sessions’ of gunfire noise. He said today he had no gunfire exposure in the Army as he was a Trumpeter. Dr Lucchese states on 19.7.21 ‘has never served in the defence force). He gave no history of recreational noise exposure. He gave no history of otalgia (ear pain) or otorrhoea (ear discharge). He gave no history of ear surgery.
He gave a history of diabetes treated with tablets for 2 years. He gave a history of raised cholesterol treated with tablets for 20 years. He gave a history of hypertension treated with tablets for 20 years. He gave no history of heart disease, stroke, thyroid disease or meningitis. He gave no history of motor vehicle accidents. He said he stopped smoking 7 years ago after smoking for 40 years. He said he had a hernia operation.
· general health: Please see body of my report.
· work history including previous work history if relevant:
OCCUPATIONAL HISTORY
· D Akmadzic & I Akmadzic trading as Artive Home Service as a Construction Worker/Painter on high rise buildings for 3 months, October 2009, (in his statement), to 4 November 2009. He said he was exposed to the noise of grinders and power tools, construction site noise and other trades, eg carpenters, electricians, plumbers cutting concrete or brick. He said he was exposed to the noise of sanding and grinding surfaces, heavy compressors to spray machines to mix and spray plaster, cement, render and texture coatings and paint, and kangas on concrete ceilings or balconies as preparation for painting. He said his shift was 40 hours per week. He said he was always in noise. He said hearing protection was worn when it was safe to do so.
· Painter 1975-2009 with Hydex Company and other companies as a subcontractor. He said he was exposed to similar noise as above and the noise of high rise construction sites, grinding, sanding, kangas, compressors and other trades. He said his shift was 10-14 hours per day 5-7 days per week. He said he was in noise all the time. He said he had to raise his voice and sometimes shout to have a conversation at 1 metre. He said no hearing protection was worn.
· Sydney Water Board NSW for 6-8 weeks. He said he was exposed to the noise of tunnelling, drilling rock and excavators and winches. He said his shift was 40 hours per week. He said he had to raise his voice and shout to have a conversation at 1 metre. He said hearing protection was worn.
· Brisbane, Queensland as a painter 1972-1975 (Sarri Bros) only painting high rise buildings. He said he was exposed to similar noise as a Painter and construction site worker with the noise of grinding, sanding, kangas, compressor sprayers and other trades (similar to noise in NSW). He said his shift was 40 hours per week. He said he had to raise his voice and go outside to have a conversation at 1 metre. He said no hearing protection was worn.
· In Macedonia
1.Wallpaperer for 6 years, 1963-1972. He gave no history of noise exposure.
2.Painter for 5 years on old buildings. He said he was painting only and gave no history of noise exposure. He said his shift was 40 hours per week (apprentice). He said he did not have to raise his voice to have a conversation at 1 metre. He said no hearing protection was worn.
5. FINDINGS ON PHYSICAL EXAMINATION
On examination I observed the following.
Ears
Otomicroscopy
Right Ear:
His right external auditory canal is normal.
His right tympanic membrane is intact.
Left Ear:
His left external auditory canal is normal.
His left tympanic membrane is intact.
Weber Test: Using the 512Hz tuning fork he denied hearing the Weber test.
Rinne Test: Using the 512Hz tuning fork his Rinne test is positive bilaterally.
Nose
Anterior rhinoscopy showed deviation of the nasal septum to the left.
Throat
His oropharynx is normal.
He had no cervical lymphadenopathy.
AUDIOGRAM
My pure tone audiometry was performed on 26.4.23 in a suitable sound attenuated environment, being a sound proof booth, with a calibrated audiometer. His responses were repeatable and I considered accurate auditory thresholds were obtained. His pure tone audiogram showed a bilateral sensorineural hearing loss maximal in the high frequencies with right worse than left.
In accordance with the Medical Board guidelines for medico-legal assessments I have given Mr Petreski a letter to take to his General Practitioner re his right hearing worse than left. He assured me he would do so.
My audiogram in tabular form
Injury deemed to have happened on:
Frequency Hz
Left dB HL
Air Bone
Right dB HL
Air Bone
4.11.2009
500
35
35
40
40
1000
35
40
40
35
1500
45
50
60
55
2000
45
50
65
65
3000
65
60
70
65
4000
65
65
75
75
6000
80
90
8000
85
100
Dr Brian Williams”
The Panel accepts that report. Based on the findings recorded therein, the calculation of bilateral hearing impairment (BHI) and WPI is as set out in the new MAC hereunder. The Panel find his right unilateral intermittent tinnitus is unrelated to his occupation. This is because it is associated with right asymmetric sensorineural hearing loss and occupational tinnitus is typically bilateral and symmetric rather than unilateral.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 August 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W691/22 |
Applicant: | Lazar Petreski |
Respondent: | D Akmadzic & I Admadzic t/as Artive Home Artive Home Service |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Kenneth Howison and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - calculation of whole person impairment (WPI) for industrial deafness as set out in the Table immediately below in accordance with Chapter 9 of the Guidelines for the Evaluation of Permanent Impairment and 1988 NAL Tables:-
Injury deemed to have happened on: | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone | Total % BHI | Occupational % BHI | ||
4/11/2009 | 500 | 35 | 35 | 40 | 40 | 5.1 | 0.0 |
| 1000 | 35 | 40 | 40 | 35 | 6.3 | 5.7 | |
| 1500 | 45 | 50 | 60 | 55 | 8.8 | 8.1 | |
| 2000 | 45 | 50 | 65 | 65 | 6.7 | 6.1 | |
| 3000 | 65 | 60 | 70 | 65 | 7.1 | 7.0 | |
| 4000 | 65 | 65 | 75 | 75 | 6.9 | 6.7 | |
| 6000 | 80 | 90 | |||||
| 8000 | 85 | 100 | |||||
TOTAL % BHI: 40.9 | |||||||
| Less Pre-existing non-related loss: 7.3 | |||||||
Less Presbyacusis correction: 7.5 | |||||||
Add % of severe tinnitus: 0.0 | |||||||
Adjusted total % BHI: 26.1 | |||||||
| Resultant total BHI of 26.1 % = 13 % whole person impairment (Table 9.1) A 1/10th deduction under s 323 is 1.3 %WPI resulting in 11.7 %WPI which rounds to 12 %WPI due to injury of 4/11/2009. | |||||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
3
0